FLSA Work Hour Requirements
Posted June 27, 2018
The Fair Labor Standards Act (FLSA) requires employers to pay their employees for all hours they are “suffered or permitted to work.” These hours are known as “work hours” or compensable time.
Compensable time includes all hours during which an individual is actually performing productive work and all hours an employee is required by his or her employer to remain available for the next assignment. Compensable time does not include periods where an individual is relieved of all obligations and is free to pursue his or her own interests.
To determine how much of an employee’s time is compensable time, employers must determine whether the employee is on duty, and how rest periods or certain industry extended hours affect an employee’s hours of work. Work hour standards are enforced by the U.S. Department of Labor’s (DOL) Wage and Hour Division.
To calculate an employee’s compensable time, employers must determine whether an employee is on-duty. The hours an employee is on duty are compensable because the employer effectively controls the employee’s time, even when waiting is part of the job or when the employee is allowed to use the time for his or her own purposes.
Compensable time includes on-call time when an employee is required to remain on-call at the employer’s premises or so close to them that he or she cannot actually use the time for his or her own purposes while on-call.
On-call time is not compensable for employees who are merely required to inform their employer of where they can be reached while they are away.
Compensable time may include time an employee is allowed to sleep when not busy if the employee is required to be on-duty. When an employee is required to be on duty for 24 hours or more, the employer and the employee can reach an agreement to exclude sleep time from compensable time if the:
- Employer does not exclude more than eight hours;
- Employer provides adequate facilities for the employee to sleep; and
- Employee can usually enjoy an uninterrupted night’s sleep.
If an employee’s sleeping period is interrupted by a call to duty, the employer must count the length of the interruption as compensable time. If the interruption prevents the employee from having at least five hours of sleep, the employer must count the entire eight-hour period as compensable time.
Preparatory and Concluding Activities
Under amendments made to the FLSA in 1947 (the Portal-to-Portal Act), compensable time includes all hours employees are engaged in principal activities as well as any time spent in preparatory and concluding activities that are an integral part of a principal activity.
Principal activities are the tasks, duties and responsibilities that relate directly to an employee’s job or position. Preparatory and concluding activities are an integral part of principal activities if employees must perform them to satisfy their job responsibilities. Preparatory and concluding activities may include inspecting machinery and putting on or removing required personal protective equipment. Preparatory and concluding activities may include the time an employee is required to travel to a worksite but do not usually include an individual’s personal commute to his or her job.
The nature of an employee’s business and the occupation of each employee determine which preparatory or concluding activities are an integral part of each employee’s principal activities. Employers should evaluate whether preparatory and concluding activities are compensable time on a case-by-case basis.
For example, on December 9, 2014, the U.S. Supreme Court held unanimously in the case of Integrity Staffing Solutions, Inc. v. Busk that an employee’s time spent in security screening before leaving the workplace is not compensable under the Fair Labor Standards Act (FLSA), as amended by the Portal-to-Portal Act.
In this case, employees demanded unpaid wages for the time they spent waiting for and undergoing security screenings as they entered and left their warehouse. The time spent in screenings amounted to approximately 25 minutes per day. The employees also argued that screening time could have been reduced to an insignificant amount if Integrity Staffing had added more security screeners or had staggered the end time of employee shifts.
However, The Supreme Court agreed with Integrity Staffing Solutions and found that the security screenings at issue were not the principal activity the workers were employed to perform. Employees were hired to retrieve products from warehouse shelves and package them for shipment.
The Supreme Court also found that the security screenings were not integral and indispensable to the employees’ primary activities because Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.
According to observers of the Supreme Court, this decision also implies that the time spent by employees in security checks entering facilities such as airports, courts, government buildings and other private offices may also not be compensable.
Attending Lectures, Meetings, Training Programs and Similar Activities
Compensable time includes attending lectures, meetings, training programs and similar activities, if participation is mandatory. Attendance is considered mandatory if an employee’s employment would be (or has been) adversely affected if he or she does not participate in the activity. Otherwise, attendance to these activities is not compensable time if:
- Attendance is outside of the employee’s regular working hours;
- Attendance is voluntary;
- The course, lecture or meeting is not directly related to the employee’s job; and
- The employee does not perform any productive work during attendance.
Employers must compensate their employees for rest periods but not for meal or nursing breaks.
Employers that provide brief rest periods for their employees (between five and 20 minutes long) must count the length of the period as compensable time. Rest periods include coffee breaks, bathroom breaks and time for snacks. Compensable time for rest periods cannot be offset against waiting or on-call time.
Generally, meal breaks of at least 30 minutes are not compensable time if employees are completely relieved from duty. A period shorter than 30 minutes may be long enough under special conditions. Employees are not completely relieved of all duty if they are required to perform any active or inactive duty while eating. Permission to leave the employer’s premises during the meal break is not required for an employee to be relieved of all duties.
Under the Affordable Care Act, the FLSA was amended to require employers covered by the act to provide nursing mothers with reasonable break time to express breast milk for their nursing children for up to one year after their birth. This break must be provided each time the employee has the need to express the milk. The employer must also provide a location, other than a bathroom, where the employee can express milk in privacy. A location is private if it is shielded from view and free from intrusion from co-workers and the public.
However, employers are not required to compensate their employees for nursing breaks. Furthermore, employers with fewer than 50 employees are not subject to this requirement if it would impose an undue hardship.
The FLSA provides extended hours to calculate overtime work for retail establishments, employees subject to collective bargaining agreements, heath care facilities, small petroleum distributors, the tobacco industry, certain passenger carrier employees and employees participating in remedial education programs.
The FLSA allows retail establishment employees to work beyond the 40-hour workweek without receiving overtime pay if their regular wage rate is at least one and one-half times the minimum wage rate and more than 50 percent of his or her income (for a representative period of at least one month) is derived from sale commissions.
Collective Bargaining Agreements
Some collective bargaining agreements can override the overtime wage requirement if they are certified by the National Labor Relations Board. For example, a collective bargaining agreement could set regular work hours as 1,040 hours of work during a 26-week period and exempt employers from paying overtime wages unless employees work more than 1,040 hours. However, these agreements often also include provisions for the maximum number of hours employees can work per week or per day.
Health Care, Mental Care and Group Care Facilities
Hospitals and other establishments primarily engaged in the care of resident patients—the sick, the aged, the disabled and the mentally ill—may adopt a 14-day work period instead of a seven-day workweek to calculate overtime pay. However, employees of these institutions must receive overtime compensation for hours worked over eight hours in any workday and 80 hours in any 14-day work period.
Small Petroleum Distributors
Small petroleum distributors may require their employees to work over the 40-hour workweek. When requiring extended work hours, employers must pay their employees:
- Their regular wage rate for any hours worked up to 40 hours in a workweek;
- At least one and one-half times the minimum wage rate for hours more than 40 but less than 56 during the workweek; and
- At least one and one-half times the employee’s regular wage rate for hours worked beyond 12 hours in any workday or 56 hours in any workweek.
For example, a small petroleum distributor must pay an employee with a regular rate of $10 per hour at least $633.92 for 60 hours of work during one workweek. The employee under this scenario received compensation of $10 per hour for the first 40 hours, $10.87 per hour for the next 16 hours (one and one-half times the minimum wage rate of $7.25) and $15 per hour for the last four hours (one and one-half times the employee’s regular rate of $10).
A small petroleum distributor is an independently owned and locally controlled enterprise that:
- Has an annual gross volume of sales less than $1 million;
- Makes at least 75 percent of its revenue from sales within the state; and
- Makes no more than 25 percent of its sales to customers who purchase for bulk distribution resale.
Employers in the tobacco industry may adopt a 10-hour workday and a 48-hour workweek for up to 14 weeks within a 52-week period. This provision applies to employees rendering services related to the buying, grading, handling, packing, re-drying, selling at auction, sizing, stemming, sorting and storing of tobacco.
Employees working over the 10-hour workday or the 48-hour workweek are entitled to receive overtime wages for the hours worked over the workday or workweek limits.
Street, Suburban or Interurban Electric Railway, Local Trolley or Motorbus Carrier
Compensable time for employees of street, suburban or interurban electric railway, local trolley or motorbus carriers does not include employment in charter activities if the employee’s participation in these activities is not part of the employee’s regular duties and the employee participates in charter activities pursuant to a previous agreement with his or her employer.
Employers offering their employees remedial education may adopt a 50-hour workweek to calculate employee overtime compensation.
Remedial education is employer-sponsored instruction provided for employees who lack a high school diploma. Employers must design the instruction program to help employees develop reading and other basic skills at least at an eighth grade level. This instruction program must not contain job-specific training.
Special Employment Certificates
Employers should review carefully the terms and conditions of any DOL special certificates for the employment of students, learners, apprentices and messengers. These certificates often include specifications on the maximum number of hours and working schedules for these employees.
Irregular Work Hours
Employers that operate within necessary irregular work hours may require their employees to work up to 60 hours per week without providing them with overtime pay.
Necessary irregular work hour jobs are jobs where neither the employer nor the employee can control or anticipate the number of hours an employee must work. Furthermore, the inability of employers and employees to anticipate the number of work hours must cause a significant variance on the number of hours worked from one workweek to the other. Some examples of necessary irregular work hour occupations include outside buyers, on-call servicemen, insurance adjusters, newspaper reporters, news photographers, firefighters and troubleshooters.
Employers may not discharge or discriminate in any manner against an employee who files a complaint or cooperates with the DOL in an investigation or proceeding.
FLSA violations are punishable by a fine of up to $10,000, imprisonment for up to six months or both. In addition, these violations are subject to civil liability in state or federal courts and employers may be required to compensate employees for unpaid wages, liquidated damages, attorneys’ fees, court costs and any other amount a court sees fit to impose. Fee amounts may increase for repeat and willful offenders.
Contact Horst Insurance for more information on wage payment and work hour laws.